Kelley v. State, 73088

• Decision Date: 06 September 1990
• Docket Number: No. 73088,73088
• Court: Florida Supreme Court
• Parties: 15 Fla. L. Weekly S441 William H. KELLEY, Appellant, v. STATE of Florida, Appellee.

Page 754

569 So.2d 754

15 Fla. L. Weekly S441

William H. KELLEY, Appellant, v. STATE of Florida, Appellee.

No. 73088.

Supreme Court of Florida.

Sept. 6, 1990.

Rehearing Denied Dec. 10, 1990.

Larry Helm Spalding, Capital Collateral Representative, and Billy H. Nolas, Chief Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, and Barry Wilson and Maxine Sushelsky, Boston, Mass., for appellant.

Robert A. Butterworth, Atty. Gen., and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

William Kelley appeals the trial court's denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. This Court previously affirmed Kelley's conviction and death sentence for the 1966 murder of Charles Von Maxcy. Kelley v. State, 486 So.2d 578 (Fla.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The trial judge summarily denied several of Kelley's claims but conducted an evidentiary hearing on the claim that the prosecution suppressed evidence favorable to the defendant and the contention that the defendant was denied effective assistance of counsel.

Kelley first argues that the state's destruction of material evidence prior to his trial deprived him of his constitutional rights. In the prior appeal, this Court explained that because the case involving Maxcy's death had been closed for many years, the state obtained an order permitting the destruction of evidence. Several years later, the state initiated the prosecution of Kelley when new evidence came to light. This Court concluded that the state had not been negligent in causing the destruction of evidence and further held that the destruction of the evidence in question did not prejudice Kelley's case.

Kelley now argues that certain crime scene evidence was destroyed which was not encompassed within this Court's earlier ruling. However, it appears that many of the items characterized as "additional evidence" were discussed in a supplemental brief in Kelley's original appeal. Thus, while our opinion did not specifically discuss such additional evidence, it is clear that the issue was decided adversely to Kelley. Further, in affidavits submitted in support of the motion for postconviction relief, Kelley's trial counsel admitted knowing that the fruits of the police investigation had been destroyed. The state was not at fault in the destruction of the evidence. Kelley, 486 So.2d at 581. The destruction of evidence in this case did not deprive Kelley of due process of law. See Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (unless defendant shows bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process).

Two other claims are procedurally barred. The first of these is whether during a break in the defense counsel's cross-examination of a witness the state improperly showed to and discussed with the witness records which the defense was using to impeach the witness. The basis for Kelley's claim is contained in the trial record. Therefore, this claim should have been raised on appeal. Kelley also contends that his rights were violated by an improper closing argument. This is also a claim which should have been raised on appeal.

Kelley further claims that the court should have declared him indigent so as to provide him funding to obtain the services of certain experts. It should be noted that Kelley was being defended by private counsel rather than the capital collateral representative. Both of Kelley's lawyers admitted to being paid, though they declined to say who was paying them. Kelley mainly wanted experts to try to explain how he was hampered by his inability to have available the evidence which had been destroyed. However, he was procedurally barred from presenting the destruction of evidence point. With respect to his desire to hire a state attorney to testify as to what a reasonably trained prosecutor would have known to turn over to the defense pursuant to a request under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the judge properly observed that he was in a position to determine what constituted exonerating evidence which should be disclosed pursuant to Brady, without the need of expert testimony. The judge did not abuse his discretion in denying the request for funds to hire the experts. See Quince v. State, 477 So.2d 535 (Fla.1985), cert. denied, 475 U.S. 1132, 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986).

With respect to the two issues upon which testimony was taken, the judge's order succinctly addressed each of Kelley's contentions:

"ORDER DENYING DEFENDANT'S MOTION TO VACATE JUDGMENT OF CONVICTION AND SET ASIDE SENTENCE OF DEATH

"INTRODUCTION

"THIS MATTER came before the court on the defendant's Motion to Vacate Judgement of Conviction and Set Aside Sentence of Death filed pursuant to FRCrP 3.850. The Motion contains six grounds for relief. However, the court earlier determined that four of the six grounds were inappropriate for post conviction relief because the issues were, or should have been, raised on direct appeal. The two remaining claims, the prosecution's suppression of evidence favorable to the defendant (Brady violation), and ineffective assistance of counsel, were addressed at an evidentiary hearing in Highlands County, Florida, on July 18 and 19, 1988. After considering the evidence and testimony presented, and argument of counsel, the court finds that the defendant is not entitled to relief.

"I. BRADY VIOLATION CLAIM

"The defendant's first claim is based on alleged Brady violations. Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), holds that the prosecution bears the duty of disclosing to the defense any material exculpatory information in its possession. The United States Supreme Court refined the materiality standard in United States v. Agurs, 427 U.S. 97 [96 S.Ct. 2392, 49 L.Ed.2d 342] (1976), holding that

'(t)he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality" in the constitutional sense." 427 U.S. at 109

The Court explained that the proper test was whether the suppressed information creates a reasonable doubt of guilt that did not otherwise exist. The Agurs materiality test was further expanded in a 1985 case, where the court stated:

'The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' United States v. Bagley, 473 U.S. 667, 682 [105 S.Ct. 3375, 3383, 87 L.Ed.2d 481] (1985).

Applying the above standards, this court's findings are briefly summarized as to each item of evidence or information allegedly withheld by the prosecution:

"1. The transcript of the first murder trial of John Sweet, the State's chief witness.

"Even if the State had deliberately withheld the transcript, which is not this Court's finding, this evidence was legally immaterial. The testimony regarding Irene Maxcy's sexual misconduct would have been inadmissible for the purpose of impeaching John Sweet. Furthermore, defense counsel was aware of the allegations concerning Mrs. Maxcy. The testimony regarding the taped phone conversations was also immaterial. The defense possessed a copy of the transcript of Sweet's second trial which contained essentially the same information as the first trial, and Sweet's alleged statement to Irene Maxcy that he did not know a 'William Kelley' is rendered irrelevant by Sweet's later testimony that he lied to the police about knowing the defendant.

"2. Latent Fingerprint Report

"The defendant never had actual physical possession of this report. However, the defense was aware, from the beginning of the trial, that none of the fingerprints matched the defendant's, and commented upon this fact during the closing argument. Moreover, John Sweet testified that the killer was wearing gloves at the time of the murder.

"3. A 1967 police report showing that

a State's witness, Kaye Carter could

not positively identify the defendant

when shown a picture of him.

"From the testimony presented at the hearing, it appears likely that the defendant possessed a summary of the police report which, unlike the original full report, did not contain the line about Ms. Carter's identification of the defendant's photograph. The court finds no evidence, however, that the State intentionally or knowingly withheld the original report. Also, this evidence, even if helpful to the defense, was not material. Ms. Carter did pick out the defendant's photograph in 1967 during an investigative interview with police. Moreover, she positively identified a photo of the defendant at Sweet's second trial. Ms. Carter was not asked to make a courtroom identification of the defendant during his trial.

"4. Crime scene photographs.

"No photographs were deliberately withheld from the defense. The four photos which the defendant alleges would have helped in his defense were not introduced in evidence at trial, but were available for the defendant's inspection upon request. At least one photograph shows what appears to be bloody footprints or smudge marks at the crime scene. This evidence is immaterial, because the three color photographs which were introduced depicted 'a great deal of blood', as pointed out by Mr. Kunstler during cross examination. Even more important, the defense argument was contradicted by the testimony of J.C. Murdock, who stated that no bloody footprints were found.

"5. The fact that John Sweet received

immunity in Massachusetts for

his cooperation in the Maxcy case,

among other things.

"The fact that John Sweet...